Challenges to German ratification of the UPC Agreement trigger delay but possibly not for long

After the German Parliament's upper house, the Bundesrat, passed the legislation to allow Germany to ratify the UPC Agreement (UPCA), there have been two challenges filed before the German Constitutional Court.  As a result, according to information from the Federal President’s office, he has been asked to delay his signature, which is required in order for the legislation to enter into force. This legislation includes the German consent to the Protocol on Provisional Application (PPA), which requires German ratification to enter into force. Therefore the Provisional Application Period (PAP) (see our previous post here) cannot presently commence, delaying the further preparation of the UPC.

One of the two challenges comes from Ingve Stjerna who mounted a successful challenge back in 2017 on the basis that the required two-thirds majority had not been achieved in the parliamentary vote.  Once this had been confirmed by the Constitutional Court, the measures returned to the Bundestag and Bundesrat and were passed by the latter on 18 December 2020.  The identity of the other applicants is not known other than that it is a joint application of an individual, an association and a company.

Like last time, Stjerna has applied for an interim injunctive measure requesting the court to make an order preventing German ratification pending the full decision of the court. The same application has been made in the other challenge. However, while last time the Court did not decide on the injunctive relief because the Federal President held off his signature until the full decision, we understand that this time the Constitutional Court is expected to decide on the interim injunction, so that if the interim injunction is dismissed, the ratification will proceed. It is unclear when this decision will issue. There are rumours that it might take only weeks, but as details of the complaints are not yet available it is not possible to say how substantial the complaints are. It can be expected that the Court will need to look into the complaints closely given the prejudice the interim decision creates for the full decision and further the fact that when Germany deposits its ratification the UPC will go ahead.

The Bundestag has decided to take as active a role as it can in the proceedings by joining the proceedings, which allows the Bundestag to make additional submissions and be represented by a lawyer (in addition to the opinion already submitted in January at the request of the Constitutional Court).

If the interim injunction applications are unsuccessful, the UPCA legislation ratification and the PPA ratification will be finalised and Germany could then deposit, inter alia, the PPA instrument, while the full decision of the court is still pending. This deposit would be instrumental in allowing the PAP to begin (the UPC Preparatory Committee website states that two more PPA ratifications are also required). Once the PAP is fully ratified, the practical arrangements for the court can be completed, such as recruitment of judges, finalization of IT systems etc.

We expect that if the interim injunction applications are rejected, Germany will deposit and not await the full decision.

For more on the UPC and the unitary patent (UP), see our Hub dedicated to the UPC and UP.

Authors